He Didn’t Use a Condom and Lied About it. Is that Rape?

It started with trust – but ended in trauma.

A young woman consents to sex, but only on the condition that her partner wears a condom. He agrees. But during the act, he secretly removes it without telling her. She only finds out afterward.

She’s devastated. Angry. Violated. But is what happened to her a crime?

Under NSW law – the answer may surprise you.

Welcome to the legal grey zone of stealthing.

What is Stealthing — and Why Are We Talking About It?

“Stealthing” is the term used when someone removes a condom during sex without the other person’s knowledge or consent. It’s not just deceitful, but it can expose someone to pregnancy, STIs, and intense emotional distress.

In the last few years, stories of stealthing have appeared all over the media – from viral TikToks to major news exposés. And while it might once have been brushed off as a “miscommunication” or “just bad behaviour”, Courts are starting to treat it as serious sexual assault.

In New South Wales, the law is now catching up with community expectations.

What Does the Law Say in NSW?

In NSW, sexual assault is defined under section 61I of the Crimes Act 1900 (NSW), which states:

“Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent… is guilty of an offence.”  Crimes Act 1900 (NSW) s61I

But what counts as consent? That’s where section 61HE becomes crucial.

Under s61HE(2), a person consents only if they freely and voluntarily agree to the sexual activity.

And critically, under s61HE(6), consent can be negated if it was obtained by deception.

So, if someone agrees to sex on the condition that a condom is used, and the other person lies or deceives them, that consent may be invalid. If sexual intercourse then takes place, it could legally amount to sexual assault.

So – Is Stealthing Considered Rape?

There is no standalone offence in NSW called “stealthing”. But that doesn’t mean it isn’t criminal.

In the recent ACT case R v Inman [2020] ACTSC 124, a man was convicted of rape for stealthing. Though it wasn’t a NSW case, the reasoning aligns with how NSW interprets consent and deception.

In fact, NSW courts have started to accept that stealthing can void consent, depending on the facts.

In 2021, NSW District Court Judge Norman referred to stealthing as an “egregious breach of trust and bodily autonomy”. This reflects a growing recognition that sexual autonomy must be respected, and deception is not consent.

What Evidence Do You Need to Prove Stealthing?

This is where things get tricky.

Often, stealthing cases come down to one person’s word against another’s. There might not be physical evidence or witnesses. The accused may claim it was a misunderstanding or simply deny it altogether.

But that doesn’t mean these cases are hopeless.

Evidence that can support a stealthing claim may include:

• Text messages or DMs after the event (e.g. admissions or apologies)
• Medical records showing STI exposure or emergency contraception use
• Witnesses the complainant confided in immediately after the incident
• Police interviews or forensics, where relevant

In a recent NSW case (unpublished due to legal restrictions), the Court accepted that the complainant had clearly communicated her requirement for a condom and that removing it without consent voided the original agreement.

Could You Be Charged Without Realising You Broke the Law?

Absolutely.

That’s one of the most confronting aspects of stealthing.

Many people don’t realise that lying about condom use or secretly removing one can amount to sexual assault. But ignorance of the law is not a defence.

In the era of sexual autonomy, courts are no longer willing to tolerate manipulative behaviour cloaked as “misunderstanding”. Consent must be informed, ongoing, and genuine.

What Does Sentencing Look Like?

If convicted, sexual assault in NSW carries a maximum penalty of 14 years imprisonment.

Sentencing depends on many factors, including:

• Level of deception
• Physical or psychological harm
• An accused’s criminal history
• Remorse or guilty plea

What Should You Do If It Happens to You?

If you believe you’ve been a victim of stealthing:

• Seek medical attention immediately for STI screening and emergency contraception
• Report to police as soon as possible
• Preserve evidence (e.g. clothing, text messages)
• Speak with a lawyer before giving a formal statement

It’s also essential to access emotional support. Services like Rape & Domestic Violence Services Australia (1800 RESPECT) can help victims process trauma.

Are We Seeing Reform?

Stealthing has now been explicitly criminalised in Victoria, the ACT, and Tasmania. NSW has not yet passed specific “stealthing” legislation – but the existing law already allows for prosecution through the broader definition of consent.

You can read more about NSW sexual assault reforms via the NSW Law Reform Commission.

Final Thoughts: Is This a Conversation We’re Ready to Have?

Here’s the hard truth: most people still don’t know that stealthing is illegal.

It’s rarely talked about openly yet quietly affects thousands of Australians every year. If we want to protect bodily autonomy and respect sexual consent, we must start by naming the violation.

National Criminal Lawyers are experts in defending sexual assault charges. We’ve helped dozens of clients navigate accusations involving consent disputes, including cases where stealthing was alleged. Call us on 1800 CRIM LAW for a free consultation.